Leaving Specific Items for Heirs in Your Will? Proceed with Caution

When drafting a will, your first instinct may be to use the opportunity to make specific gifts to loved ones—your home to a child or grandchild with a large family, your vintage Mercedes to a family member with an interest in old cars, your antique jewelry to a child who has long admired it. However well-intentioned, this approach can have unfortunate side effects if not carried out carefully. Read on to learn about the perils of bequeathing specific items to your will’s beneficiaries, and contact a seasoned New York estate planning attorney if you have additional questions.

Don’t unintentionally disinherit a loved one

As a responsible parent, property owner, or spouse, you’ve created an estate plan well before you’ve reached old age. This means that you’re more likely than not to live for many more years before your will is executed, during which time many things can change. If you’ve left specific items to your loved ones in your will, those items may no longer exist when you pass away, which could result in you unintentionally disinheriting one of your heirs.

Here’s an example of how this scenario can play out in a way that could be harmful to your heirs and would fail to carry out your wishes for your heirs: Let’s say you leave your house to your daughter and leave a trust to your nephew to pay for his college expenses. In your later years, you become unable to care for yourself and move into an assisted living facility, selling your home in the process. You use a long-term care insurance policy to pay for the facility and place the proceeds from the sale of your home into the trust. At the time of your death, you had not revised your will since its original drafting. When you die, your daughter is left receiving nothing and your nephew, the proceeds of the home sale.

Ademption explained

Ademption is the legal term used to describe when an item bequeathed in a will is no longer owned by the testator’s (i.e., the deceased person’s) estate. There are two forms of ademption: ademption by satisfaction and ademption by extinction. When a gift has been adeemed by satisfaction, it means that the bequeathed item, or proceeds from the sale of that item, was given to the intended heir during the testator’s lifetime. Ademption by extinction is the term for the scenario described above, when an item is not a part of the estate and the heir has not received a benefit from it in any form.

In order to avoid this outcome, New York residents should commit to regularly revising their estate plan during their lifetime so that these sorts of errors can be corrected. Additionally, when creating a will, consider leaving a percentage share of your estate to your heirs rather than specific items. This can help you avoid unintentionally leaving out loved ones when items are no longer in your possession when you pass.

If you’re in need of detail-oriented, professional, and seasoned legal assistance in creating a will in New York, contact the Hudson Valley estate planning attorneys at Rusk, Wadlin, Heppner & Martuscello, LLP for a consultation, in Marlboro at 845-236-4411, and in Kingston at 845-331-4100.

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